Another blow was dealt to public records access in Tennessee this month when NewsChannel 5 lost a case in Chancery Court in Davidson County related to a recent controversy involving former TBI Director Jason Locke.

Nashville investigative reporter Phil Williams had requested travel records, phone logs and credit card purchase summaries, among other records, after allegations arose that Locke had been conducting an affair with another state official using public resources.

Around the same time of the public records request, the Davidson County district attorney began an investigation into the allegations.

Though Williams had made his request to the Tennessee Department of Mental Health and Substance Abuse Services and to the Tennessee Bureau of Investigation — and not to the district attorney — access to otherwise public records were denied based on reasoning that they had become part of an investigative file.

The news station sued, saying the so-called “investigative exemption” could not be used to cloak public records of a government agency simply because they were being reviewed as part of an investigation by the district attorney.

Davidson County Chancellor Anne Martin

Chancellor Anne Martin disagreed with NewsChannel 5, and upheld the state’s position, argued by Deputy Attorney General Janet Kleinfelter, that a 2016 Supreme Court ruling should be broadly applied to protect from disclosure any documents in an investigative file, regardless of the nature of the records when they were created.

“The Court… finds that the holding in Tennessean (v. Metropolitan Government of Nashville and Davidson County) mandates a broad protection for documents in the possession of an investigative agency relevant to a pending or contemplated criminal action, even if the documents originated from another State agency and were created in the ordinary course of business,” Martin wrote.

Martin noted differences between the Scripps and the Tennessean cases. The records request by The Tennessean was made to the Nashville Police Department, an investigative agency, and the records requested included items prepared by a third party, Vanderbilt University, which was not a government entity.

In the current case, the request was directed to non-investigative state agencies, and they were records “developed and retained by those agencies in the ordinary course of business,” Martin wrote. “They were not created for or through an investigation, but rather became part of the investigation after it was commenced.”

While TBI is an investigative agency, the TBI records requested were operational, non-investigative records.

“The State takes the position that the records changed in character when the investigation began and that, by becoming part of the investigation, they fell under the Rule 16 exception,” Martin wrote. “Further, the State contends that it does not matter the nature of the records when they were created, but rather their nature when produced. The State relies on the importance of the constitutional rights of criminal defendants, as discussed in detail in Tennessean, as well as public policy that parties should not be able to avoid the discovery rules in the Tennessee Rules of Criminal Procedure to obtain prosecutors’ files.”

NewsChannel 5’s attorney Ron Harris had relied on a Court of Appeals decision in 2003, Chattanooga Pub. Co. v. Hamilton County Election Commission. In that case, the court ruled that copies of voter affidavits and oaths in a county commissioner Democratic primary that had been given to the Tennessee Bureau of Investigation were not investigative records of the TBI at the time the request was made and should have been released.

“While Chattanooga Pub. Co. could arguably be applied to find that the records requested in the present case are not subject to Rule 16 exemption, the more recent ruling in Tennessean militates against such a result,” Martin’s order read, referring to Rule 16 of the Rules of Criminal Procedure.

“…the rule in Tennessean applies to documents in the possession of an investigative agency relevant to a pending or contemplated criminal action and affords those records blanket protection pursuant to Rule 16.

“Thus, even though the records at issue are still public records created ‘in connection with the transaction of official business by [a] governmental agency’ Tenn. Code Ann. §10-7-503(a)(1)(A), and even though the records are not the same nature or character as the records sought in Tennessean, the Court’s intention in Tennessean appears to be for a broad application of the Rule 16 exemption to protect any documents in an investigative file from disclosure.”

A grand jury declined to return indictments in the Locke investigation, and the records were eventually provided.